Will California Formally Ban the Death Penalty? If So, When?

Currently, there are more than 730 inmates on death row in California. A recent moratorium on the death penalty was signed by Governor Gavin Newsom in 2019. This effectively halted the use of death as a form of punishment. Now, the fate of these inmates is in question as California legislators debate the future of the death penalty in the state.

California Death Penalty History

In California, the death penalty was initially authorized by the Criminal Practices Act of 1851. This was adopted into the state penal code in 1872. At the time, all executions were done by hanging at either Folsom or San Quentin prisons. By the 1940s, over 300 inmates had received the death penalty at these two locations.

In the 1960s, several legal challenges were submitted against the death penalty. In 1972, the California Supreme Court found that the death penalty was a cruel and unusual punishment. However, in the same year, state legislators passed a law that made the death penalty mandatory in certain criminal offenses. The California Supreme Court ruled this statute as unconstitutional in 1976. After this, state legislators enacted a different statute in 1977 that re-enacted the death penalty as a form of punishment.

In 1978, California voters approved Proposition 7. This reaffirmed the new statute and the death penalty was again allowed in the state. The next execution was not conducted until 1992. By this time, California’s preferred method was the use of the cyanide gas chamber. This method was declared unconstitutional by a federal judge in 1994. After this, the state switched to using lethal injection.

What is the Process to Ban the Death Penalty?

The last person to be put to death in California was 76-year-old Clarence Ray Allen. He was convicted of murdering three people and he was executed on January 17, 2006. There have been continued fights on between the state court and the California Department of Corrections and Rehabilitation over the regulations and procedures of lethal injection complying with the state’s Administrative Procedure Act. Despite this, California voters decided in 2016 to not repeal the death penalty.

On March 13, 2019, Governor Gavin Newsom signed the executive order to institute a moratorium on the death penalty in California. The order also closed down the two death penalty sites at prisons. It did not release any current prisoners. The Governor claimed it was necessary because of the high cost of the death penalty, the racial disparity of those on death row, and the moral question as to whether the state had the right to take a person’s life.

While the moratorium will continue while the Governor is in office, it can easily be repealed when the next Governor takes office. Making the ban on executions permeant requires approval by the state and the voters. In fact, several state prosecutors are still seeking the death penalty as a punishment and the California Supreme Court declined to halt death penalty trials in the wake of the moratorium.  

When Might California Ban the Death Penalty?

For some, especially those who were previously on death row but exonerated, Governor Newsom’s moratorium is the first step in banishing the death penalty for good in California. This is especially promising because California has the highest number of inmates on death row in all of the states. The majority of the inmates are people of color and some suffer mental illness or brain injuries. For those that oppose the death penalty, the time is now to make California become a leader in the country by banning the death penalty.

To ban the death penalty, more needs to be done besides the moratorium. This is only a temporary stay while the current Governor is in office. A recently proposed amendment to the state’s constitution could do this, but it would require approval from two-thirds of both the state house and senate. Then, the measure would need to be approved by a majority of California voters.

There is some evidence that California voters may be shifting towards supporting ending the death penalty as punishment in the state. A recent poll, taken after the moratorium went into effect, showed that 62% of Californians said that they do not want the death penalty to be the sentence for first-degree murderers. This suggests that if a death penalty ban makes it to the voters in the next year, it could possibly pass. This would make California the largest and most recent state to officially repeal the death penalty.

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